Tagged: conflict of interest

In a recent Huffington Post piece, titled The Trump Administration’s Treatment Of Law Enforcement Professionals and The Criminal Justice System Is Alarming, alum and PCJI Board Member John Bandler critiques the administration’s treatment of the law enforcement community.

whether the constitution is violated if the chief judge on the highest court of the state refuses to disqualify himself in a death penalty appeal where he was the chief prosecutor who authorized the defendant’s death sentence, obtained the death sentence though his office’s misconduct, and campaigned for the judgeship by showing how many people he put on death row, including the defendant.

Interestingly, amici included many judges, including the late Judge Judith Kaye, who argued that the judge should have recused himself, and a group of professional responsibility law school professors on the same side.

Prof. Bennett Gershman analyzes the issues and implications of Williams v. Pennsylvania in his latest HuffPost article titled A Perfect Storm: Judicial Prosecutorial Misconduct, and a Death Sentence and outlines the various issues involved in this case. The ultimate question is not only whether the judge should have disqualified himself when deciding the defendant’s death penalty appeal but also whether, if he didn’t, his bias on the panel decision was nothing more than a harmless error. As Prof. Gershman concludes that

…without Justice Scalia, a 4-4 split on the Supreme Court is possible. And if that is the result, then under the Supreme Court’s rules the decision of the Pennsylvania supreme Court would be affirmed – and Terrence Williams will be executed.

After a three-week highly publicized federal trial in the Southern District of New York, former New York Assembly Speaker, Sheldon Silver, was convicted on all seven counts against him. Silver received nearly $4 million in corrupt payments from two different law firms and earned over $700,000 in referral fees from real estate firm, Goldberg & Iryami, by inducing real estate developers to retain the firm. Silver also received over $3 million in case referrals sent to Weitz & Luxenberg. Silver secured the asbestos case referrals from a doctor, and in exchange, directed New York State funds to the doctor’s research center. Silver was automatically expelled from his assembly seat after his conviction.

The conviction of Silver signifies many turning points for New York and presents a broad array of subject matter. The end of a powerful politician’s decades-long run. A vacant seat in the assembly. A recently honed focus by the federal government to end rampant political corruption. But another less obvious topic of discussion amidst Silver’s trial is the role the jury played in his conviction. On several occasions during the deliberation process, jurors vocalized their concerns and requested to be relieved. Though Silver was ultimately convicted by a unanimous decision, it is worth noting the issues expressed by these jurors and what exactly they signify.

Shortly after the jury began deliberations, one juror sent a note to Judge Valerie E. Caproni requesting to be dismissed. “I have a different opinion/view so far in this case and it is making me feel very, very uncomfortable,” the juror wrote. “I am so stressed out right now that I can’t even write normally. I don’t feel like I can be myself right now! I need to leave!” The judge denied the juror’s request. Furthermore, the juror had also requested a private meeting with the judge. Judge Caproni denied such a meeting, stating that, “the secrecy of jury deliberations is a cornerstone of our jury system.” Shortly after the request, the judge received another note stating that one of the jurors was “having difficulty distinguishing whether or not exchanging New York State funds for something in return is illegal” – the ultimate trial issue – and requested information on a code of conduct. Another juror, a cab driver, later asked to be excused based on a conflict of interest – his medallion owner allegedly was friends with Silver. The juror was kept on the case. After three days of deliberation, a guilty verdict was rendered.

Jury deliberations are secretive by nature. It is very rare to catch a real-time glimpse of the inner workings of such a system. But in Silver’s case, perhaps one of the most highly publicized trials New York has seen in recent history, the mindsets of some jurors were exposed for all to see – and for all onlookers to analyze. So what does it mean when there is such discord in the juror room – enough to warrant letters to the judge and requests for dismissal?

In the case of the first reluctant juror, defense lawyer, John Meringolo, believed it could perhaps be due to the juror’s unwillingness to convict. “When there’s chaos in the jury room, it’s always good for the defendant. Statistically, the conviction rate is so high in the federal system, when you have someone who’s willing to take a stand, it means that maybe he has a shot.” Meringolo proved correct. After a deliberation was reached, the juror identified herself and stated she was the only juror who doubted Silver’s guilt. “There were people who did not want to listen to anything I had to say — not many, a few,” Arleen Phillips said. “It was tense and I just wanted to get out of there.”

A juror’s pressure to ‘get out’ of deliberations (and oftentimes, jury duty itself) is a problem that has long plagued the justice system. As is one of the many ways in which a juror’s fairness is unable to be gauged, lawyers and judges alike cannot predict which jurors vote due to factually and legally cognizable reasoning and which vote simply to “get out of there.” But in Silver’s case, it was vocalized on three separate occasions that there were issues amongst the jurors that influenced their decisions in perhaps an inappropriate way. As evident in Phillips’ statement, unanimity was not reached due to her actual beliefs and interpretations of the facts and law, but rather, it seems that she was broken down by others.

It is no surprise that a juror majority will always try to influence the lone wolf in an effort to reach a verdict. But what happens if debate and discussion turns into pressure and coercion? At what point is a jury considered no longer able to render a truly unanimous verdict? Silver’s case is a prime example of such an issue, and just as it brings forth many questions as to the propriety of New York’s politicians, it is also an excellent vehicle in which to examine the practical difficulties of juror unanimity.

The Supreme Court, Kings County, has granted a post-conviction motion to vacate a conviction (CPL 440.10) where the defendant’s attorney accepted employment with the Kings County District Attorney’s Office after having been substantially involved in the preparation of the case for trial. The attorney was assigned to the homicide bureau, became Chief of the Trial Division, and then an Executive in the office and there were no mechanisms put in place to avoid a breach of confidence or the appearance of a conflict of interest.